Is my estate dispute suited for mediation?

Kirsh, partner with Schnurr Kirsh Oelbaum Tator LLP, says it's likely that parties to a trust or estate dispute would be better served by pursuing mediation, instead of litigation in the courts, in an attempt to settle their differences.

While the process is mandatory in Estates List actions launched in Toronto, Ottawa and the County of Essex, under the province’s Rules of Civil Procedure, Kirsh says disputants outside those jurisdictions should seriously think about mediation when considering their legal options.

“Generally speaking, any dispute to do with an estate or trust is very well-suited for mediation,” she says.

Mediation traditionally offers both cost and time savings as opposed to litigation, but Kirsh says one of its chief selling points is its flexibility. Freed from the strictures of formalistic court rules, the parties are able to pick their own decision-maker and control the process.

“In these kinds of disputes, there are many things that people want to say that aren’t apparently germane to what’s at issue, and certainly wouldn’t be admissible as evidence in court,” she explains. “But the great thing about mediation is that everything can be relevant.”

In addition, Kirsh says mediators are afforded the time and space to look behind the dispute and explore some of the family dynamics, root causes and emotional barriers to settlement, which may have built up over years of strife between parties.

“You have an opportunity to go into the background and look at the real core of the infighting,” she says. “Those things are definitely not coming up at trial.”

Still, Kirsh says it can take some time for parties and their counsel to adjust to the unique environment of an estate mediation session.

“Emotions can run very high, which makes it challenging,” she says. “But it’s worth it if you can get to an agreement that satisfies everyone.”

In certain cases, such as those involving the interests of minors or incapable persons, Kirsh says it’s impossible to bypass court altogether.

“Those kinds of disputes cannot be resolved without a court order approving the settlement,” she says. “You can use mediation to get there, but it won’t be binding until the court has given its approval.”

This is the second instalment inToronto trust and estate litigator Felice Kirsh’s look at mediation in estates disputes. Stay tuned for part three, where she will discuss how to pick your mediator.